Approved for public release; distribution unlimited US ARMY NATICK SOLDIER RD&E CENTER HOW TO DO BUSINESS WITH THE NSRDEC GUIDEBOOK

Transcription

1 Approved for public release; distribution unlimited US ARMY NATICK SOLDIER RD&E CENTER HOW TO DO BUSINESS WITH THE NSRDEC GUIDEBOOK 1

2

3 TABLE OF CONTENTS How To Do Business with the U.S. ARMY NATICK SOLDIER RESEARCH, DEVELOPMENT AND ENGINEERING CENTER (NSRDEC) GUIDEBOOK 2016 Introduction... 3 Cooperative Research & Development Agreement (CRADA) What is a CRADA?... 4 Sample CRADA Memorandum of Agreement (MOA) and Memorandum of Understanding (MOU) What is a MOA and MOU?...15 Sample MOA Education Partnership Agreement (EPA) What is an EPA?...20 Sample EPA Patent License Agreement (PLA) What is a PLA?...25 Application for a PLA Sample PLA Testing Service Agreement (TSA) What is a TSA?...35 Sample TSA Unsolicited Proposal Program Government Solicitations and Opportunities Contract...42 Grant...42 Technology Investment Agreement (TIA)...42 Cooperative Agreement (CA)...42 Other Transaction (OT)...42 Broad Agency Announcement (BAA)...43 Small Business Innovation Research (SBIR)

4 2

5 INTRODUCTION INTRODUCTION: Since 1954, the NSRDEC, also known as Natick Labs, has followed a simple mandate: to provide the Army with innovative science and technology solutions to optimize the performance of our Soldiers. The NSRDEC ensures that U.S. Warfighters are the best-equipped, best-clothed, best-fed, and best- protected in the world through the latest science and technology in the areas of airdrop, combat feeding, individual clothing and equipment, shelters, and Soldier system integration. As part of the Army s Research, Development and Engineering Command (RDECOM), NSRDEC leads the Soldier Systems Integration Domain in coordinating Soldier-related efforts across the command and in highlighting Soldier technology capability gaps that need to be filled. NSRDEC also works in close collaboration with other organizations at the Natick Soldier Systems Center as well as with Program Executive Officer (PEO) Soldier and PEO Combat Support and Combat Service Support to bring the fastest and most capable equipment solutions to our Warfighters. WORLD CLASS ORGANIZATION: NSRDEC s world-class scientists, engineers, and equipment designers provide a wide range of capabilities to include field feeding and life support systems, clothing, precision airdrop systems, and ballistic, chemical, and laser protection systems to America s Warfighters. RESEARCH, DEVELOPMENT & ENGINEERING (RD&E): NSRDEC s technical and scientific expertise in the Research, Development and Engineering (RD&E) of novel materials and fibers has led to the creation of new combat uniforms and Soldier equipment that is lighter weight, more durable, and more threat resistant than anything Soldiers have ever worn. Innovative research into food science and packaging has led to a new understanding of how to maximize a Soldier s performance by developing rations that contain just the right mix of nutrients, are easy to prepare in remote locations, and, most importantly, taste good. State-of-the-art systems now use advanced technology to power, heat, light and support modern structures that protect Soldiers and enhance their quality of life. Research into airdrop and other aerial delivery technologies has matured to ensure that personnel and equipment reach their destination in the fastest, most precise, yet safest, way possible. TECHNOLOGY TRANSFER: Throughout the years, NSRDEC has reached out to a broader community through technology transfer and cooperative agreements with private industry and other government agencies. Through such efforts, NSRDEC developed much of the food eaten by astronauts aboard the space shuttles, outfitted police forces with special ballistic protection, and developed shelf-stable sandwich foods that promise to combine convenience and nutrition for a consumer market. 3

6 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT (CRADA) WHAT IS A CRADA? A Cooperative Research and Development Agreement (hereinafter referred to as a CRADA ) is a legal instrument that allows for federal and nonfederal parties to enter into agreements to conduct specified research and development related technology transfer activities that are consistent with the laboratory s mission. A CRADA is neither a procurement contract nor grant as defined in 31 U.S.C nor can it be used as substitute for one. Federal Laboratories can commit resources such as personnel, facilities or equipment (with or without reimbursement), but not funds, to the nonfederal parties. Nonfederal parties can commit funds as well as other resources as a part of the agreement. CRADAs generally grant intellectual property rights to the CRADA partner. This area of the agreement is usually open to negotiations between the federal party and the CRADA partner, and depends on the type of CRADA work to be performed under the agreement. WHY IS A CRADA IMPORTANT? A CRADA is important because it allows the private sector to take advantage of technology and expertise developed by the federal government. The Federal Technology Transfer Act of 1986 created CRADAs as a vehicle whereby federal technology and research and development could be acquired by the private sector for its own use. This is sometimes referred to as technology transfer. The benefits of a CRADA to the country, the federal laboratory and its employees include the facilitation of the transfer of results of federally funded R&D to the private sector to expedite commercialization and advancement of the technology; and the federal laboratory and its inventors are permitted to receive a percentage of royalties generated as a result of the commercialization effort. The benefits to the private sector include the opportunity to obtain exclusive rights to commercialize inventions conceived or first reduced to practice in the performance of work done under the CRADA; and access to federal expertise, equipment, facilities and personnel. WHAT ARE THE CHARACTERISTICS OF A CRADA? The work to be done must be consistent with the laboratory s mission; Special consideration is given to small business; Provisions addressing a variety of intellectual property issues such as data rights, property, ownership, and rights to future inventions are contained in the CRADA; and The Government, at a minimum, must retain a nonexclusive, nontransferable, irrevocable, paid-up license to make or have made for governmental purposes any inventions made in the performance of work done under the CRADA. 4

7 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT SAMPLE (Actual agreements may vary) COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT This Cooperative Research and Development Agreement ( CRADA ) is entered into by and between, a corporation with a principal place of business at ( Company ), and the U.S. Army Natick Soldier Research, Development and Engineering Center, located in Natick, Massachusetts ( NSRDEC ). A. WHEREAS, the Congress, in enacting the Federal Technology Transfer Act of 1986, Public Law No , October 20, 1986, and any and all subsequent legislation related thereto (collectively, Federal Technology Transfer Act of 1986 ), has found that Federal laboratories development should be made accessible to private industry, State and Local Governments, and has declared that one of the purposes of the Federal Technology Transfer Act of 1986 is to improve the economic, environmental and social well-being of the United States by stimulating the utilization of Federally-funded technology developments by such parties; B. WHEREAS, the Federal Technology Transfer Act of 1986, among other technology transfer improvements, has provided each Federal agency with the authority to permit the Director of Government-operated Federal laboratories to enter into CRADAs with Federal or non-federal entities, including private firms and organizations, for the purpose of providing to or obtaining from collaborating parties, personnel, services, property, facilities, equipment or other resources (but not funds of any Federal party) toward the conduct of specified research and development efforts, which may include the disposition of patent rights in the inventions which may result from such collaboration; C. WHEREAS, NSRDEC has performed substantial research with respect to, hereinafter referred to as the Technology; D. WHEREAS, NSRDEC possesses certain advanced scientific skills, testing facilities, special equipment, information, know-how, and expertise pertaining to the Technology; E. WHEREAS, Company possesses certain advanced scientific skills, testing facilities, special equipment, information, know-how, and expertise pertaining to ; F. WHEREAS, NSRDEC and Company are interested in the further development and commercialization of the Technology; G. WHEREAS, Company is willing to provide resources for further development of the Technology and subsequently to explore applications of interest to the general public and consider marketing of products related to the Technology; and H. WHEREAS, NSRDEC views its collaboration with Company to develop the Technology to be in the public interest; NOW, THEREFORE, the parties hereto agree as follows: ARTICLE 1 - DEFINITIONS As used in this CRADA, the following terms shall have the following meanings and such meanings should be equally applicable to both the singular and plural forms of the terms defined: 1.1 Invention means any invention or discovery which is or may be patentable or otherwise protected under Title 35 of the United States Code or any novel variety of plant which is or may be protectable under the Plant Variety Protection Act (7 U.S.C et seq.). 1.2 Made in relation to any Invention means the conception or first actual reduction to practice of such Invention. 1.3 Proprietary Information means any information which embodies trade secrets developed at private expense or which is confidential, scientific, business or financial information, provided that such information: 5

8 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT (i) is not generally known or available from other sources without obligations concerning its confidentiality; (ii) has not been made available by the owners to others without obligation concerning its confidentiality; (iii) is not already available to the U.S. Government without obligation concerning its confidentiality; and (iv) has not been developed independently by persons who had no access to the Proprietary Information. 1.4 Subject Data means all recorded information first produced in the performance of this CRADA. 1.5 Subject Invention means any Invention of Company or NSRDEC conceived or first actually reduced to practice in the performance of work under this CRADA. ARTICLE 2 - COOPERATIVE RESEARCH 2.1 Statement of Work. Cooperative research performed under this CRADA shall be performed in accordance with the Statement of Work ( SOW ) attached hereto as Appendix A. NSRDEC and Company agree to perform the cooperative research and to utilize such personnel resources, facilities, equipment, skills, know-how and information as they consider necessary, consistent with their own policies, missions and requirements. 2.2 Review of Work. Periodic conferences shall be held between NSRDEC and Company personnel for the purpose of reviewing the progress of work. Each party shall have exclusive control and supervision over the conduct of its research. It is understood that the nature of this cooperative research is such that completion within the period of performance specified cannot be guaranteed. Accordingly, it is agreed that all cooperative research is to be performed on a reasonable best efforts basis. 2.3 Principal Investigation. NSRDEC will assign a substantial portion of its work to be performed pursuant to the SOW to the (Name of Team) at NSRDEC. The work will be performed under the supervision of (Name of NSRDEC POC) (for NSRDEC) and (Name of Cooperating Party s POC) (for Company) or their successors, who, as principal investigators, have the responsibility for the scientific and technical conduct of this project. 2.4 Scope Change. If at any time the principal investigators determine that the research data justify a substantial change in the direction of the work, the parties shall make a good faith effort to agree on any necessary change to the SOW. ARTICLE 3 - REPORTS 3.1 Interim Reports. Commencing six (6) months after the Effective Date (as defined in Section 15.2) of this CRADA, each party shall submit semiannual written reports to the other party during the term of this CRADA on the progress of its work under this CRADA and the results being obtained and shall make available to the other party, to a reasonable extent, other project information in sufficient detail to explain the progress of the work. 3.2 Final Reports. Each party shall submit to the other party a final written report of its results within six (6) months after completing the SOW. ARTICLE 4 - FINANCIAL OBLIGATION 4.1 Funding. No funds shall be provided by NSRDEC to Company under this CRADA. 4.2 Advance Payment. The performance of research by NSRDEC under this CRADA is conditioned on the advance payment by Company of NSRDEC s full cost for the performance of such research. 4.3 Deposit Account. Company shall pay $. to NSRDEC for the performance of the research specified in Article 2. Such funds shall be deposited as follows: 6

9 $ to be deposited upon the execution of this CRADA; and COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT $ to be deposited within months of the Effective Date of this CRADA. NSRDEC shall not be obligated to perform any of the research specified herein or to take any other action required by this CRADA if the agreed to funds are not deposited as required by this Article. 4.4 Insufficient and Excess Funds. NSRDEC shall not be required to continue its research and development activities under this CRADA if the funds provided by Company are insufficient to cover NSRDEC s full cost for such continued activities. Funds not expended by NSRDEC shall be returned to Company upon NSRDEC s submission of a final fiscal report to Company. 4.5 Accounting Records. NSRDEC shall maintain separate and distinct current accounts, records, and other evidence supporting all its expenditures under this CRADA. NSRDEC shall provide Company a semi-annual report accounting for the use of Company funds and a final fiscal report within six (6) months after completing the SOW or ending its research activities under this CRADA and the completion of the research work. These accounts and records of NSRDEC shall be available for reasonable inspection and copying by Company and its authorized representative. ARTICLE 5 - TITLE TO PROPERTY 5.1 Capital Equipment. All capital equipment developed or acquired under this CRADA shall be the property of the party developing or acquiring such equipment. The parties agree that any such equipment acquired by NSRDEC, including by expenditure of funds received by NSRDEC under this CRADA, shall be owned by NSRDEC. No exchange of equipment between the parties is contemplated under this CRADA. 5.2 Transfer/Disposal of Materials. Each party agrees to transfer and dispose of material developed or used under this CRADA and located at its facility at its own expense and in accordance with related Federal, State and Local requirements. ARTICLE 6 - PATENT RIGHTS 6.1 Reporting. NSRDEC shall promptly report to Company each Subject Invention reported to NSRDEC by its employees. Company shall promptly report to NSRDEC each Subject Invention reported to Company by its employees. 6.2 Company Subject Inventions. NSRDEC, on behalf of the U.S. Government, waives any ownership rights the U.S. Government may have in Subject Inventions Made solely by Company employees (a Company Subject Invention ) and agrees that Company shall retain title to any such Company Subject Invention. Company agrees to grant and hereby grants to the U.S. Government for any Company Subject Invention a non-transferable, non-exclusive, irrevocable, paid-up license to practice or have practiced the Company Subject Invention throughout the world by, or on behalf of, the U.S. Government. Such non-exclusive license shall be evidenced by a confirmatory license agreement prepared by Company in a form satisfactory to NSRDEC and Company. Company may transfer its rights provided for by this Section 6.2 to others subject to the license granted to the U.S. Government. 6.3 NSRDEC Subject Inventions and Joint Subject Inventions. NSRDEC, on behalf of the U.S. Government, shall have the initial option to retain sole title to each Subject Invention Made solely by its employees (a NSRDEC Subject Invention ). Any Subject Invention Made jointly by a Company and a NSRDEC employee (a Joint Subject Invention ) shall be jointly owned, and patents arising from such Joint Subject Inventions shall be assigned as joint property of the parties. Each party will own an undivided one-half interest in all such Joint Subject Inventions, or such interest as a multiparty agreement may show, without royalty or financial accounting to each other. Except as otherwise specified in this CRADA, neither party shall acquire any rights to any other invention or other intellectual property of the other party under this CRADA. NSRDEC agrees that in the event it does not wish to retain title to an NSRDEC Subject Invention or its title in a Joint Subject Invention, NSRDEC shall first offer Company the right to acquire such title under mutually acceptable terms, which shall include provisions for royalty income to the U.S. Government in accordance with the principles set forth in Section below, based upon the recognition that the title rights transferred to Company are at least equivalent to an exclusive license, and a reservation of a paid-up, non-transferable, non-exclusive, irrevocable license to practice and have practiced the NSRDEC Subject Invention or Joint Subject Invention, as applicable, on behalf of the U.S. Government. 7

10 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT 6.4 Filing of Patent Applications. The party retaining (or acquiring) title to a specific Subject Invention retains the right to file patent applications thereon and Company shall have the first right to file patent applications on Joint Subject Inventions; costs and cooperation shall be in accordance with Section 6.5. However, such party may elect not to file patent applications thereon and agrees to so advise the other party of such election promptly upon making such decision. Thereafter, the other party may elect to file patent applications on such Subject Invention and the party initially reporting such Subject Invention agrees to assign its right, title and interest in such Subject Invention, subject to Section 6.3, to the other party and cooperate with such party in the preparation and filing of patent applications thereon. In the event neither of the parties to this CRADA elects to file a patent application on a Subject Invention, either or both (if a Joint Subject Invention) may, at their sole discretion and subject to reasonable conditions, release the right to file to the inventor(s), subject to the retention by the parties hereto of non-exclusive, irrevocable, paid-up licenses to practice, or have practiced, the Subject Invention throughout the world. 6.5 Patent Expenses. The expenses attendant to the filing and prosecution of patent applications as specified in Section 6.4 shall be borne by the party filing the patent application(s). Each party shall provide the other party with copies of the patent applications it files on any Subject Invention along with, upon written request, the power to inspect and make copies of all documents retained in the official patent application files by the applicable patent office. The party retaining title to a Subject Invention, and in the case of a Joint Subject Invention, the party filing the patent application, shall pay all required maintenance fees. If a party decides not to pay any such required maintenance fee, such party shall inform the other party of such decision in time so that said other party may pay such maintenance fee if it desires to keep such patent(s) active. 6.6 Exclusive License Grants. NSRDEC, on behalf of the U.S. Government, hereby agrees to grant, subject to Section 6.6.2, to Company an exclusive license within a field of use to the U.S. Government s interest in each Subject Invention, and in each U.S. patent application and corresponding foreign patent applications, and patents issued thereon, covering a Subject Invention, which is filed by NSRDEC on behalf of the U.S. Government (a Patented Subject Invention ), subject to the reservation of an irrevocable, non-transferable, non-exclusive, royalty-free license to practice and have practiced the Subject Invention on behalf of the U.S. Government, and such other terms and conditions as are mutually agreed upon by NSRDEC and Company in such exclusive license. Such exclusive licenses shall be for an initial term ending five (5) years from the date of issuance of each patent claiming the Patented Subject Invention and with respect to each such patent shall be renewable for successive five (5) year periods, provided Company is then conducting research directed towards the commercialization of the subject matter covered by such patent and/or continues to commercialize the subject matter covered by such patent Exclusive License Terms. NSRDEC and Company shall negotiate in good faith a reasonable specific royalty rate within twelve (12) months from the date that a United States or foreign patent application is filed for a Subject Invention. The reasonable royalty rate for each exclusive license shall be based upon a portion of the selling price of the item attributable to the presence of claimed subject matter where such item is a machine, article of manufacture, product made by a process, or composition of matter as defined by the claims of the patents. Where the claimed subject matter relates to a process or method to be practiced under the claims of the patent, the royalty will be based upon the net savings attributable to the implementation of said process or method. Where an exclusive license is based upon a patented Joint Subject Invention, the specific royalty rate for that patent will be adjusted to reflect the joint inventive contributions of Company. 6.7 Other NSRDEC Inventions. This CRADA does not grant an implied license to Company with respect to any other U.S. Government inventions, including any NSRDEC inventions not covered by Section 6.6. NSRDEC agrees to grant a non-exclusive license to Company to such other NSRDEC inventions if requested by Company on fair and reasonable terms, if such non-exclusive license is necessary for Company to practice any Subject Invention under this CRADA, but only to the extent that NSRDEC has an unencumbered right and/or authority to do so. Nothing in this CRADA shall be construed as a grant or an agreement to grant any license with respect to any invention made by any other U.S. Army laboratory or any other U.S. Government agency or laboratory. 6.8 Commercialization of Subject Inventions. Company agrees that if NSRDEC assigns title or grants an exclusive license to any NSRDEC Subject Invention or the U.S. Government s interest in any Joint Subject Invention to Company, the U.S. Government shall retain the right: (i) to require Company to grant to a responsible applicant a non-exclusive, partially exclusive, or exclusive license to use such NSRDEC Subject Invention or Joint Subject Invention in the applicant s licensed field of use, on terms that are reasonable under the circumstances; or 8

11 (ii) if Company fails to grant such a license, to grant the license itself. COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT The U.S. Government may exercise such right only if the U.S. Government determines that: (A) the action is necessary to meet health or safety needs that are not reasonably satisfied by Company; or (B) the action is necessary to meet requirements for public use specified by Federal regulations, and such requirements are not reasonably satisfied by Company; or (C) Company has failed to comply with any agreement that products embodying any Subject Inventions or products produced through the use of any Subject Inventions will be manufactured substantially in the United States. This determination is subject to administrative appeal and judicial review under Section 203(b) of Title 35 of the United States Code. ARTICLE 7 - DATA AND PUBLICATION 7.1 Rights. NSRDEC agrees that information that results from research and development activities conducted under this CRADA and that would be a trade secret or commercial or financial information that is privileged or confidential if the information had been obtained from Company shall be protected against dissemination for a period of two (2) years after development of said information. 7.2 Proprietary Information. Company shall place a proprietary notice on all Proprietary Information it delivers to NSRDEC under this CRADA, or advise NSRDEC, in writing, of the proprietary nature of such disclosure within thirty (30) days of such disclosure if made verbally or visually. NSRDEC agrees that any Proprietary Information that is furnished by Company to NSRDEC under this CRADA, or in contemplation of this CRADA, shall be used by NSRDEC only for the purpose of carrying out this CRADA. Proprietary Information shall not be disclosed, copied, reproduced or otherwise made available in any form whatsoever to any other person, firm, corporation, partnership, association or other entity without the prior written consent of Company, except as such information may be subject to disclosure under the Freedom of Information Act (5 U.S.C. 552). NSRDEC agrees to use its best efforts to protect Proprietary Information from unauthorized disclosure. Company agrees that NSRDEC is not liable for the disclosure of Proprietary Information which, after notice to and consultation with Company, NSRDEC determines may not lawfully be withheld or which a court of competent jurisdiction requires to be disclosed. 7.3 Release Restrictions. NSRDEC shall have the right to use all Subject Data for any Governmental purpose; but shall not release such Subject Data publicly except: (i) NSRDEC, when reporting on the results of its research under this CRADA, may publish Subject Data, subject to the provisions of Sections 7.1, 7.2 and 7.4, and provided Company is given a sixty (60) day opportunity to review the manuscript and provide suggestions before publication; and (ii) NSRDEC may release any Subject Data where such release is required pursuant to a request under the Freedom of Information Act (5 U.S.C. 552); provided, however, that such data shall not be released to the public if a patent application is to be filed (35 U.S.C. 205) until the party having the right to file has had a reasonable time to file. 7.4 Publication. NSRDEC and Company agree to confer and consult prior to the publication of Subject Data to assure that no Proprietary Information protected from dissemination by Section 7.2, or that no privileged information protected from dissemination by Section 7.1, is released and that patent rights are not jeopardized. Prior to submitting a manuscript for review that contains the results of the research under this CRADA, or prior to publication if no such review is made, each party shall be offered an ample opportunity to review such proposed publication and to file patent applications in a timely manner, if it is so entitled under this CRADA. 7.5 International Traffic in Arms Regulations ( ITAR ). Company agrees to comply with the ITAR as it relates to any of the efforts contemplated under this CRADA. (The official version of the International Traffic in Arms Regulations can be found in Subchapter M, Title 22, Code of Federal Regulations, Parts 120 through 130 (22 CFR ), and is published by the U.S. Government Printing Office.) 9

12 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT ARTICLE 8 - COPYRIGHTS 8.1 Works Created by Company. Ownership to copyrights for the original works of authorship created by employees of Company or for hire by Company in the course of performance of work under this CRADA shall be retained by Company. Company hereby grants to the U.S. Government a royalty-free, non-exclusive, irrevocable license to use, modify, prepare derivative works, reproduce, distribute, perform, and display worldwide such copyrighted works by or on behalf of the U.S. Government for Government purposes. 8.2 Works Created by NSRDEC. Pursuant to 17 U.S.C. 105, copyright protection is not available for works of the U.S. Government. 8.3 Jointly-Created Works. Ownership of copyrights for original works of authorship created jointly by employees of (or for hire by) NSRDEC and Company in the course of performance of work under this CRADA are retained solely by Company. Company, however, hereby grants to the U.S. Government a royalty-free, non-exclusive, irrevocable license to use, modify, prepare derivative works, reproduce, distribute, perform, and display worldwide such copyrighted works by or on behalf of the U.S. Government for Government purposes. 8.4 Software. The party creating software in the course of the performance of work under this CRADA, if any, will provide the other party with the source code, object code, and minimum support documentation needed by a competent user to use the software. ARTICLE 9 - TRADEMARKS 9.1 Trademark Use. The parties recognize that Company may seek to obtain trademark protection for goods developed under this CRADA which it subsequently commercially markets. Provided that such goods are of comparable quality to the goods marketed by Company under the subject trademarks, the parties agree that the U.S. Government may indicate on any similar goods produced by or for the U.S. Government that the goods are a U.S. Government version of the goods protected by the subject trademarks. The U.S. Government shall also have the right to use the subject trademarks in print or communications media. 9.2 Qualifying Notice. Prior to the use of the subject trademarks by the U.S. Government on goods, the parties will negotiate any reasonable qualifying language that must accompany the subject trademarks. ARTICLE 10 - REPRESENTATIONS AND WARRANTIES 10.1 Representations and Warranties of NSRDEC. NSRDEC hereby represents and warrants to Company as follows: Organization. NSRDEC is a Federal laboratory of the U.S. Army and is wholly owned by the U.S. Government. NSRDEC s substantial purpose is the performance of research, development and engineering by employees of said U.S. Government Mission. The performance of the activities specified by this CRADA is consistent with the mission of NSRDEC Authority. All prior reviews and approvals required by regulations or laws have been obtained by NSRDEC prior to the execution of this CRADA. The NSRDEC official executing this CRADA has the requisite authority to do so Statutory Compliance. NSRDEC s Laboratory Director, prior to entering into this CRADA, has given special consideration to the entering into CRADAs with small business firms and consortia involving small business firms Representations and Warranties of Company. Company hereby represents and warrants to NSRDEC as follows: Corporate Organization. Company, as of the Effective Date, is a corporation duly organized, validly existing and in good standing under the laws of the State/Commonwealth of. 10

13 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT Power and Authority. Company has the requisite power and authority to enter into this CRADA and to perform according to the terms thereof Due Authorization. The Board of Directors and stockholders of Company have taken all actions required to be taken by law, Company s Certificate or Articles of Incorporation, its bylaws or otherwise, for the execution and delivery of this CRADA No Violation. The execution and delivery of this CRADA does not contravene any material provision of, or constitute a material default under any material agreement binding on Company or any valid order of any court, or any regulatory agency or other body having authority to which Company is subject. ARTICLE 11 - TERMINATION 11.1 Termination by Mutual Consent. Company and NSRDEC may elect to terminate this CRADA, or portions thereof, at any time by mutual consent. The provisions of Article 6, Article 7, Section 5.2 of Article 5 and Section 13.4 of Article 13 shall survive the termination of this CRADA by such mutual consent Termination by Unilateral Action. Either party may unilaterally terminate this CRADA at any time by giving the other party written notice, not less than thirty (30) days prior to the desired termination date. The provisions of Article 6, Article 7, Section 5.2 of Article 5 and Section 13.4 of Article 13 shall survive the termination of this CRADA by such unilateral action. ARTICLE 12 - DISPUTES 12.1 Settlement. Any dispute arising under this CRADA that is not disposed of by agreement of the principal investigators shall be submitted jointly to the signatories of this CRADA. A joint decision of the signatories or their designees shall be the disposition of such dispute. Although the parties may use Alternate Dispute Resolution techniques to resolve disputes, nothing in this CRADA precludes either party from pursuing resolution of a dispute using other legal review available by law Continuation of Work. Pending the resolution of any dispute or claim pursuant to this Article, the parties agree that performance of all obligations shall be pursued diligently in accordance with the direction of the NSRDEC signatory. ARTICLE 13 - LIABILITY 13.1 Property. The U.S. Government shall not be responsible for damages to any property of Company provided to NSRDEC or acquired by NSRDEC pursuant to this CRADA and Company shall not be responsible for damages to any property of NSRDEC or the U.S. Government provided to Company or acquired by Company pursuant to this CRADA Employees. Company agrees to indemnify and hold harmless the U.S. Government for any loss, claim, damage, or liability of any kind involving an employee of Company arising in connection with this CRADA, except to the extent that such loss, claim, damage or liability arises from the negligence of NSRDEC or its employees. NSRDEC shall be responsible for the payment of all claims for the loss of property, personal injury or death, or otherwise arising out of any negligent act or omission of its employees in connection with the performance of work under this CRADA solely under the provisions of the Federal Tort Claims Act No Warranty. Except as specifically stated in Article 10, neither party makes any express or implied warranty as to any matter whatsoever, including the conditions of the research or any invention or product, whether tangible or intangible, made or developed under this CRADA, or the ownership, merchantability, or fitness for a particular purpose of the research or any invention or product Indemnification. Company holds the U.S. Government harmless and indemnifies the U.S. Government for all liabilities, demands, damages, expenses and losses arising out of the use by Company, or any party acting on its behalf or under its authorization, of NSRDEC s research and technical developments or out of any use, sale or other disposition by Company, or others acting on its behalf or with its authorization, of products made by the use of NSRDEC s technical developments. This provision shall survive termination of this CRADA. 11

14 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT 13.5 Force Majeure. Neither party shall be liable for any unforeseeable event beyond its reasonable control not caused by the fault or negligence of such party, which causes such party to be unable to perform its obligations under this CRADA (and which it has been unable to overcome by the exercise of due diligence), including, but not limited to, flood, drought, earthquake, storm, fire, pestilence, lightning and other natural catastrophes, epidemic, war, riot, civic disturbance or disobedience, strikes, labor dispute, or failure, threat of failure, or sabotage of the NSRDEC or Company facilities, or any order or injunction made by a court or public agency. In the event of the occurrence of such a force majeure event, the party unable to perform shall promptly notify the other party. It shall further use its best efforts to resume performance as quickly as possible and shall suspend performance only for such periods of time as is necessary as a result of the force majeure event. ARTICLE 14 MISCELLANEOUS 14.1 Governing Law. The construction, validity, performance and effect of this CRADA for all purposes shall be governed by the laws applicable to the Government of the United States Entire Agreement. This CRADA constitutes the entire agreement between the parties concerning the subject matter hereof and supersedes any prior understanding or written or oral agreement relative to said matter Headings. Titles and headings of the Articles, Sections and subsections of this CRADA are for the convenience of references only and do not form a part of this CRADA and shall in no way affect the interpretation thereof Waivers. None of the provisions of this CRADA shall be considered waived by any party hereto unless such waiver is given in writing to all other parties. The failure of any party to insist upon strict performance of any of the terms and conditions hereof, or failure or delay to exercise any rights provided herein or by law, shall not be deemed a waiver of any rights of any party hereto Severability. The illegality or invalidity of any provisions of this CRADA shall not impair, affect, or invalidate the other provisions of this CRADA Amendments. If either party desires a modification in this CRADA, the parties shall, upon reasonable notice of the proposed modification by the party desiring the change, confer in good faith to determine the desirability of such modification. Such modification shall not be effective until a written amendment is signed by all the parties hereto by their representatives duly authorized to execute such amendment Assignments. Neither this CRADA nor any rights or obligations of any such party hereunder shall be assigned or otherwise transferred by either party without the prior written consent of the other party except that Company may assign this CRADA to the successors or assignees of a substantial portion of Company s business interests to which this CRADA directly pertains Notices. All notices pertaining to or required by this CRADA shall be in writing and shall be signed by an authorized representative and shall be delivered by hand or sent by certified mail, return receipt requested, with postage prepaid, addressed as follows: If to Company: If to NSRDEC: U.S. Army Natick Soldier Research, Development and Engineering Center Attn: RDNS-OOS-B (Sheri Mennillo; R134) 15 General Greene Avenue Natick, MA Any party may change such address by written notice given to the other party in the manner set forth above. 12

15 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT 14.9 Independent Contractors. The relationship of the parties to this CRADA is that of independent contractors and not as agents of each other or as joint venturers or partners. Each party shall maintain sole and exclusive control over its personnel and operations Use of Name and Endorsements Use of Name. Neither party shall use the name of the other party or the U.S. Army on any product or service which is directly or indirectly related to this CRADA, or any patent license or assignment agreement which implements this CRADA, without the prior approval of the other party Endorsements. By entering into this CRADA, neither party directly or indirectly endorses any product or service provided, or to be provided, by the other party, its successors, assignees, or licensees. Neither party shall in any way imply that this CRADA is an endorsement of any such product or service Export Control. The parties understand that information and technology resulting from the performance of this CRADA may be subject to export control laws and regulations, and each party is responsible for its own compliance with such laws and regulations. Nothing in this CRADA waives any such statutory or regulatory requirement U.S. Competitiveness. The parties agree that a purpose of this CRADA is to provide substantial benefit to the U.S. economy. To the extent feasible, the parties agree to exercise reasonable efforts to manufacture substantially in the United States products embodying intellectual property developed under this CRADA. ARTICLE 15 - DURATION OF CRADA AND EFFECTIVE DATE 15.1 Duration. It is mutually recognized that the development program cannot be rigidly defined in advance, and that the contemplated time periods for completion of each phase are good faith guidelines subject to adjustment by mutual agreement, to fit circumstances as the development program proceeds. In no case will this CRADA extend beyond ( ) years from the Effective Date of this CRADA unless it is revised in accordance with Section 14.6 of this CRADA Effective Date. This CRADA shall enter into force as of the date of the last signature of the parties (the Effective Date ). IN WITNESS THEREOF, each of the parties hereto has caused this CRADA to be executed by its duly authorized officers or representatives as follows: For Company: (Name) (Title) Date: For the U.S. Govt.: Director, Natick Soldier Research, Development and Engineering Center Date: 13

16 COOPERATIVE RESEARCH AND DEVELOPMENT AGREEMENT APPENDIX A STATEMENT OF WORK Cooperative Research and Development Agreement ( CRADA ) between U.S. Army Natick Soldier Research, Development and Engineering Center ( NSRDEC ) and ( Company ). Background: Scope: Objective: Company Responsibilities: NSRDEC Responsibilities: Additional Information: 14

17 MEMORANDUM OF AGREEMENT AND MEMORANDUM OF UNDERSTANDING MEMORANDUM OF AGREEMENT (MOA) and MEMORANDUM OF UNDERSTANDING (MOU) WHAT IS A MOA? A Memorandum of Agreement (MOA) is a Memorandum that defines general areas of conditional agreement between two or more parties. The MOA describes that which one party does which is dependent on what the other party does. MOAs may establish responsibilities for providing reimbursable support. MOAs are available for use with academic, non-profit and other government organizations. WHAT IS A MOU? A Memorandum of Understanding (MOU) is a Memorandum that defines general areas of understanding between two or more parties. The MOU explains what each party plans to do; however, what each party does is not dependent on what the other party does (e.g. does not require reimbursement or other support from receiver). MOUs are available for use with academic, non-profit and other government organizations. 15

18 MEMORANDUM OF AGREEMENT AND MEMORANDUM OF UNDERSTANDING SAMPLE (Actual agreements may vary) MEMORANDUM OF AGREEMENT BETWEEN THE U.S. ARMY NATICK SOLIDER RESEARCH, DEVELOPMENT AND ENGINEERING CENTER AND [INSERT INSTITUTION] FOR [INSERT SUBJECT] AGREEMENT NUMBER: This is a Memorandum of Agreement ( MOA ) between the U.S. Army Natick Solider Research, Development and Engineering Center ( NSRDEC ) and the ( ). When referred to collectively, NSRDEC and the are referred to as the Parties, and each individually as a Party. 1. BACKGROUND: [If there is a need to discuss background, do so here.] 2. AUTHORITIES: [State the legal authority upon which the reimbursable MOA is based, or any other legal or significant authority that authorizes any such actions associated with this MOA. If there is a need to discuss the authorities of the parties, do so here.] 3. PURPOSE: [State the purpose of the MOA here.] 4. RESPONSIBILITIES OF THE PARTIES: 4.1. NSRDEC will: [Insert as many responsibilities as necessary but ensure all the specific requirements of the party are listed] [Insert as many responsibilities as necessary but ensure all the specific requirements of the party are listed] 4.2. The will: [Insert as many responsibilities as necessary but ensure all the specific requirements of the party are listed] [Insert as many responsibilities as necessary but ensure all the specific requirements of the party are listed] 4.3. Both Parties will: [Insert as many responsibilities as necessary but ensure that they apply to both Parties.] 5. PERSONNEL: Each Party is responsible for all costs of its personnel, including pay and benefits, support, and travel. Each Party is responsible for supervision and management of its personnel. [For shared supervision or management, explain the process to accomplish that.] 6. GENERAL PROVISIONS: 6.1. POINTS OF CONTACT: The following points of contact ( POC ) will be used by the Parties to communicate in the implementation of this MOA. Each Party may change its respective POC upon reasonable written notice to the other Party. 16

19 MEMORANDUM OF AGREEMENT AND MEMORANDUM OF UNDERSTANDING For NSRDEC: Position and phone number of the primary POC: Position and phone number of the alternate POC: For the : Position and phone number of the primary POC: Position and phone number of the alternate POC: 6.2. CORRESPONDENCE: All correspondence to be sent and notices to be given pursuant to this MOA will be addressed, if to NSRDEC, to: Sheri Mennillo Natick Soldier Research, Development and Engineering Center ATTN: RDNS-OOS-B (R134) 15 General Greene Ave. Natick, MA sheri.m.mennillo.civ@mail.mil and, if to the, to: [Insert mailing address and address] or as may from time to time otherwise be directed by the Parties in writing REVIEW OF AGREEMENT: This MOA will be reviewed annually on or around the anniversary of its effective date for financial impacts and triennially in its entirety MODIFICATION OF AGREEMENT: This MOA may only be modified by the written agreement of the Parties, duly signed by their authorized representatives DISPUTES: Any disputes relating to this MOA will, subject to any applicable law, Executive Order, Directive, or Instruction, be resolved by consultation between the Parties or their respective senior leaders. For NSRDEC, senior leadership authority resides with the Technical Director; for, senior leadership authority resides with TERMINATION OF AGREEMENT: This MOA may be terminated by either Party by giving at least one hundred eighty (180) days [for MOAs involving reimbursement; use any appropriate number of days for MOAs not involving reimbursement] written notice to the other Party. The MOA may also be terminated at any time upon the mutual written consent of the Parties TRANSFERABILITY: This MOA is not transferable, except with the written consent of the Parties ENTIRE AGREEMENT: It is expressly understood and agreed that this MOA embodies the entire agreement between the Parties regarding the MOA s subject matter EFFECTIVE DATE: This MOA takes effect beginning on the day after the last Party signs EXPIRATION DATE: This MOA expires on. 17

20 MEMORANDUM OF AGREEMENT AND MEMORANDUM OF UNDERSTANDING CANCELLATION OF PREVIOUS AGREEMENT: This MOA cancels and supersedes the previously signed MOA between the Parties with the subject of, Agreement Number and effective date of. [Use only when needed to cancel a previous agreement]] [If the MOA provides for the reimbursement for supplies or services by one Party for the other Party, include Section 7]] 7. FINANCIAL DETAILS: [Include in all reimbursable MOAs] 7.1. AVAILABILITY OF FUNDS: This MOA does not document the obligation of funds between the Parties. Any obligation of funds in support of this MOA will be accomplished using a Military Interdepartmental Purchase Request, DD Form 448 [or equivalent form if with another Federal agency]. The obligation of funds by the Parties is subject to the availability of appropriated funds pursuant to the DoD Financial Management Regulation BILLING: The will bill the on a monthly basis in accordance with the procedures of the billing Party. A record of the transaction will be sent to the within thirty (30) days after the month in which the transaction occurred PAYMENT OF BILLS: The paying office will forward payments, along with a copy of billed invoices, to the within thirty (30) days of the date of invoice. Bills rendered will not be subject to audit in advance of payment FINANCIAL SPECIFICS: See Appendix A, attached hereto and incorporated by reference herein, for all other details and information on the reimbursable support identified in paragraph ECONOMY ACT DETERMINATION AND FINDINGS: If the MOA is being entered into under 31 U.S.C 1535, as amended (the Economy Act ), both Parties agree that the requirements listed in paragraph (a) of the Economy Act have been met. [Add the following sentence if the supplier is a DoD Component.] The supplier has determined that the capabilities exist to render the requested support without jeopardizing its assigned missions. [Add the following sentence only if a separate, written Economy Act determination and finding (D&F) is required.] Any required Economy Act D&F has been completed. AGREED: For NSRDEC: For the [INSTITUTION]: Director, Natick Soldier Research, Development and Engineering Center (Date) (Name) (Title) (Date) 18

21 MEMORANDUM OF AGREEMENT AND MEMORANDUM OF UNDERSTANDING APPENDIX A Financial details for a reimbursable MOA 1. Reimbursable support: [list sub-paragraphs from section 4 that specify the reimbursable support] 2. Estimated amount of funds to be reimbursed: $, Appropriation: FY. 3. Business Partner Network (BPN) Number (if required): Supplier: Receiver: 4. Financial Points of Contact: Supplier: Receiver: 5. [Add any other financial information that is required by the FMR or any other reference, or is desired to be included in the MOA but is not included in the format of the MOA elsewhere] 19